Property Rights From Below: Rethinking Property Rights Over Natural Resources

2014 Spring Symposium: Property from Below (Link)


This research project will allow us to initiate a fruitful collaboration between MIT and Université catholique de Louvain through our various research centers, linked by a shared concern for exploring alternative ways of reimagining property rights and securing access to natural resources.  This research aims to address the challenges posed by the globalization of property rights over natural resources – land, water and marine resources and genetic resources. What we observe is a growing commodification of these resources, legitimized by arguments based essentially on allocative efficiency and on the need to reward and encourage productivity (understood as the use of resources as a source of economic profit), but that often disregard the rights and interests of the poorest populations in the global South. This research shall put forward alternatives to the current trend towards increased commodification of resources, based on the identification of emerging alternative property regimes that could be better suited to the needs of the rural and urban poor in developing regions. 

We shall focus primarily on the governance of land tenure. In recent years, pressures on land have dramatically increased due to poor governance arrangements over land, population growth, the promotion of biofuel production, and as a result of policies to mitigate climate change. The resulting phenomenon, often referred to as "land grabbing", has led to the exclusion of rural and sometimes urban dwellers who depend on land for their livelihood. Indeed, land is a central productive resource for a large part of the world’s rural population. It also represents a territory charged with historical, social and symbolic significance.  The land tenure of urban poor is also increasingly tied to the viability of shelter, food and employment and land grabbing in urban areas tend to produce enormous problems of informality, violence and low economic development.

Land is at the core of major contemporary governance challenges. Indeed, solving the conjunction of food, social and environmental crises will require a fundamental redefinition of our relation to land in rural and urban areas.  Yet, there are diverging visions on the economic, social and cultural role of land. At the heart of the land debate – land for whom and for what use? –lies a crucial question: which vision of the public good should guide social, political and institutional action? Quite paradoxically, the usual tools that are promoted to protect the rights of land-users have sometimes had the opposite effect. The globalization of property rights conceived as full ownership rights, protecting in principle the land-user from expropriation but also allowing the owner to dispose of his/her property, in fact has accelerated and legitimized the commodification of land, ignoring not only the significance of land beyond being an economic asset for the land-users in rural areas in developing countries, but also encouraging an allocation of land to the actors with the highest purchasing power (a process of disposession legitimized in the name of improved allocative efficiency), and disregarding the social and environmental costs of treating land exclusively as a factor of production. And as to the courts, which are in principle to protect land-users against deprivation of their property, they have not been equipped to go beyond the conservative objective of protecting the existing distribution of resources, and they have routinely failed even in discharging that duty, with some notable exceptions.

We note that similar debates take place in the area of plant genetic resources for food and agriculture, and in the area of marine resources. The extension of intellectual property rights through the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) and, especially, through various other multilateral and bilateral agreements (particularly the UPOV agreement protecting plant breeders' rights), while ostensibly presented as a means to reward and encourage innovation in plant breeding, in fact may encourage bio-piracy (the appropriation, by commercial actors, of genetic traits developed by farmers over generations) and may price out of markets for seeds precisely the farmers who need most to have access to the best varieties. Alternative regimes are being explored, the most promising of which is the International Treaty on Plant Genetic Resources for Food and Agriculture (IT-PGRFA). This instrument, which is in force since 2004, seeks to establish a multilateral system to facilitate access to plant genetic resources for food and agriculture and to share the benefits in a fair and equitable way. It treats plant genetic resources for food and agriculture as a global public good, and it seeks to establish a novel system of governance for this global commons, recognizing that food security depends on permanent access to a large pool of genetic resources for the development of new and improved plant resources. However, the system remains incomplete. Although the Treaty applies to all PGRFA, its most original component—the Multilateral System of Access and Benefit Sharing (MLS)—only applies to the plant genetic resources for food and agriculture listed in annex I to the Treaty that are under the management and control of the states parties and in the public domain. And many implementation problems subsist.

Similar challenges are now emerging as regards marine resources. There is a new and encouraging consensus about the need to protect the livelihoods of small-scale, artisanal fishers, over 90 per cent of whom are in developing countries. Article 5(i) of the United Nations Fish Stocks Agreement requires States to take into account the interests of artisanal and subsistence fishers. Article 6.18 of the FAO's 1995 Code of Conduct for Responsible Fisheries recognizes “the important contributions of artisanal and small-scale fisheries to employment, income and food security,” and recommends that States “appropriately protect the rights of fishers and fish workers, particularly those engaged in subsistence, small-scale and artisanal fisheries, to a secure and just livelihood, as well as preferential access, where appropriate, to traditional fishing grounds and resources in the waters under their national jurisdiction.” However, disagreements exist about how user rights, which can range from individual to community-based rights, should be approached for the small-scale sector, and what are the overall aims of strengthening or changing user rights. One view is that a clarification and strengthening of access rights, including the use of transferable fishing quotas, would increase economic efficiency and avoid overfishing. Another view is that priority should go to poverty-reduction objectives and to improving access to fishing rights to the communities who need it most – and who could be best placed to manage the common pool resources concerned and monitor catches at the local level. Here too, the question of how property rights are designed and distributed has a key role to play in achieving the adequate balance between economic development objectives and social and environmental sustainability.

In each of these areas, the North-South dimension is a key factor, albeit often left in the background. The investments needed to "develop" the land in order to increase its yield productivity, to "develop" new plant varieties, or to "exploit" the fish stocks in coastal areas, typically are in the hands of large, Northern-based transnational corporations, or in those of industrialized countries. In that sense, the commodification of natural resources is also a channel through which the North can have access to the resources of the South, whilst the dependency of the South on technologies it does not own, or on capital which it does not possess, increases. Unless we pay greater attention to the equity of the arrangements concerned, which include land deals, ownership over new plant varieties and the regime of intellectual property rights, or access agreements in fisheries, we may witness a net transfer of resources from the South to the North as a result of the current globalization process.

 Against this background, our research has two objectives. First, we offer to explore the wide range of institutions through which the rights of users of natural resources could be protected, beyond a property-rights approach that accelerates and legitimizes commodification. We will aim to to  identify alternatives to the Western-based conception of property rights, taking into account the social functions of property rights regimes and the social equity and environmental sustainability requirements of sustainable development. Second, as a growing number of social actors mobilize human rights-based approaches when framing claims over land, seeds and marine resources, this research project aims at identifying the promises, but also the limitations, of such a framing of their claims. In doing so, we will aim to integrate social movements’ perspectives on law and rights, and examine the challenges faced by the actors who rely on legal approaches to securing access to land. Our research project will focus in this regard on three leading actors in current efforts to propose alternative approaches to the tenure of natural resources: peasant movements, indigenous movements and fishers’ movements. Third, we will address the questions of global justice – the North-South dimension – implicated in the globalization of property rights regimes.